Understanding the Medical Negligence Claims Process

Medical Negligence Claims Process

The medical negligence claims process can be confusing for those experiencing it for the first time. It is split into a number of stages, all of which have their own requirements and timelines.

Initial Steps

Before any claim is launched, your solicitor is likely to take a number of initial steps to ascertain whether you have genuine prospects of success. Firstly, they are likely to ask you to make an official complaint to the hospital or to one of the standards bodies which govern the conduct of medical professionals. Secondly, they will ask for your permission for your medical records to be released, as these will form the foundation of the evidence for your claim. Thirdly, in all but the simplest of cases, they are likely to seek an initial opinion from a medical expert.

At this point, you will need to have had an in-depth conversation with your solicitor about costs and how they will be met in the event of an unsuccessful claim. Don’t be shy about raising this issue, as you do not want to be in the position of having incurred substantial costs only to realise that your claim is untenable.

Pre-Action Protocol

Once the initial basis of the claim has been established, your solicitor will follow the Pre-Action Protocol. This is set down by the Ministry of Justice as part of the medical negligence claims process, and not following it can open you up to extra costs. Firstly, the defendant must be sent your ‘letter of claim’, which contains full details of your injury, the compensation sought, and the method by which your claim is being funded. In most cases, the defendant will then have four months to investigate the claim, and to choose to accept or deny liability. In the event that liability is accepted, there may still be a disagreement over ‘quantum’ (the amount of compensation), and so your solicitor may have to issue court proceedings. In the case of liability being denied, court proceedings must of course also be issued.

Court Proceedings

Even if court proceedings have been issued, it is still quite unlikely that your case will end up being heard before a judge. Only around 2% of medical negligence claims actually make it to court, with most being settled in one way or another before the trial date. If a settlement offer is made in your case, your solicitor will be able to advise you on the most sensible course of action. Ultimately, however, the decision whether to take any offer is yours alone. Should you end up before a judge, your solicitor will retain the services of a specialist barrister, whose job it will be to advocate on your behalf. They are also likely to pay at least one medical expert for their opinion. You should also be ready to give evidence, but this does not have to be as nerve-wracking as it sounds. Just tell the truth, and don’t try to outwit the opposing barrister!

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